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Status of religious freedom in Canada

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Status of religious freedom in Canada

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.

Legal framework

Constitutional rights

The "Fundamental Freedoms" section of the Canadian Charter of Rights and Freedoms states:

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Canadians are therefore free to have their own beliefs and opinions, are free to practise religion or refrain, and are free to establish media organizations with or without religious content. Canadian religious institutions generally benefit from charitable organization status, which allows supporters to benefit from tax credits or deductions for their financial contributions.

According to the Charter's preamble, Canada is founded upon principles that recognize the supremacy of God.[1] This portion of the preamble has not been accorded legal effect in Charter jurisprudence. [2] [3] The constitutional recognition of God has been criticized as conflicting in principle with the fundamental freedom of conscience and religion guaranteed in section 2, as it would disadvantage those who hold nontheistic or polytheistic beliefs, including atheism and Buddhism.[4][5]

Human rights codes

While religious freedoms are protected from state interference by the Charter, the actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in the marketplace, accommodation, and employment on the grounds of a variety of personal characteristics, including religion.

Case law

In 1955, the Supreme Court of Canada ruled in Chaput v. Romain, regarding Jehovah's Witnesses, that all religions have equal rights, based upon tradition and the rule of law. At the time, no statutes formed the basis for this argument.[6]

In the Guibord case in 1874, the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire, ruled that the civil courts of Canada have the jurisdiction to resolve disputes between members of a church and the church organization.[7] The basis for the ruling was that churches are required to comply with their own internal rules and laws, and members of the church have the right to be treated in accordance with those internal rules and laws. In the specific point in issue in the Guibord case, the Judicial Committee ruled that the Roman Catholic church in Montreal could not refuse the burial of a deceased member of the church because of his political views.

Specific freedoms

Religious speech

Further information: History of free speech in Canada

In a 1985 Supreme Court case involving the Lord's Day Act, R. v. Big M Drug Mart Ltd., Chief Justice Brian Dickson said that religious freedom in Canada includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination."

Canada has laws prohibiting the promotion of hatred against sections of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation. However, there are exemptions in the Bill which permit the expression of opinions on religious subjects and opinions based on religious texts which would otherwise be prohibited.

In 1996, the Supreme Court of Canada held that the anti-Semitic publications of a New Brunswick schoolteacher, challenged under provincial Human Rights Act, were protected by his right to freedom of religion, but that professional sanctions were a reasonable limit on that right, in order to maintain "a school system that is free from bias, prejudice and intolerance."[8]

In 1997, Hugh Owens, a Saskatchewan prison guard, published an advertisement in the Star-Phoenix that referenced Bible verses related to homosexuality (without quoting them) and drew a line through an image representing a gay couple. A complaint was lodged with the Saskatchewan Human Rights Board of Inquiry. The Board ruled against Owens and that decision was also upheld by a lower court. On 13 April 2006 the Saskatchewan Court of Appeal overturned the previous decisions, ruling that while Owens's advertisement was "offensive and jarring to many", it was not illegal. The court also ruled that statements which are designed to provoke "extreme emotions and strong feelings of detestation, calumny and vilification" may be deemed as hate speech.[9]

In 2000, Rev. Ken Campbell successfully defended against an Ontario Human Rights Commission complaint filed after he placed an advertisement in the Globe and Mail newspaper where he protested a Supreme Court of Canada ruling calling for Alberta to amend the Human Rights Code regarding LGBT issues. The ad began with "Supreme Court has no business imposing 'bathhouse morality' on the churches and in the living rooms of the nation." Two years later he successfully defended against a complaint filed at the BC Human Rights Tribunal for the same advertisement, with the decision stating "The essence of Mr. Campbell's defence is that the publication... is an expression of his Charter-protected rights to express his religious beliefs; that is, a finding of discrimination would impair both his freedom of expression and his freedom of religion."[10]

Another high profile case involves Chris Kempling, a school teacher, who was suspended without pay in 2002 for writing letters to a local newspaper objecting to the introduction of LGBT-related material into the public school system, arguing against same-sex marriage, and advocating conversion therapy for gay and lesbian persons. Kempling appealed the suspension to the courts. The British Columbia Court of Appeal found that his right to freedom of expression had been breached, but that the disciplinary action was a reasonable limit on his rights, as it was done with the objective of maintaining a tolerant and non-discriminatory school system.[11]

Sabbath and holiday observance

In R. v. Big M Drug Mart, the Supreme Court of Canada held that the stated purpose of the federal Lord's Day Act, compelling observance of the Christian Sabbath, was incompatible with the protections of freedom of religion in the Charter. In 1986, in R. v. Edwards Books and Art, the Supreme Court found that legislation prohibiting Sunday shopping with the secular purpose of creating a day of rest was also a violation of freedom of religion because of the unequal effect of the law on retailers who observed a different sabbath. However, this violation was upheld as a justifiable limit on freedom of religion.

The Supreme Court of Canada has ruled that there is a duty to accommodate religious observance under human rights legislation. The 1990 case Central Alberta Dairy Pool v. Alberta concerned an employee who was required by his religion to take Easter Monday as a holy day. As this is not a statutory holiday, his employer required that he work that day or lose his job. The Supreme Court of Canada found that the employer should have accommodated the employee's religious practices.

Religious dress

In a 1985 court case involving an employee of the Canadian National Railway, K.S. Bhinder, a Sikh whose religion required that he wear a turban, lost his challenge of the CNR policy that required him to wear a hard hat.[12] In the 1990 case of Central Alberta Dairy Pool, the Supreme Court of Canada overturned the 1985 Bhinder decision, saying: "An employer that has not adopted a policy with respect to accommodation and cannot otherwise satisfy the trier of fact that individual accommodation would result in undue hardship will be required to justify his conduct with respect to the individual complainant. Even then the employer can invoke the BFOQ (bona fide occupational qualification) defence." [13] In the 1991 case of Peel Board of Education v. Ontario Human Rights Commission, an Ontario school board's "zero tolerance" for weapons in its schools had an adverse impact on Khalsa Sikh men who are required by their religion to carry a kirpan, a ceremonial dagger. A Khalsa Sikh teacher brought a complaint under the Ontario Human Rights Code and was successful. The school board challenged this to the Ontario Divisional Court on the basis that there was a threat to public safety. The Divisional Court ruled that the threat to public safety from Sikhs was minimal and the discriminatory impact of the ruling on this religious group was significant. In 2006, the Supreme Court of Canada ruled in Multani v. Commission scolaire Marguerite‑Bourgeoys that Sikh children can wear a kirpan to school based on freedom of religion.

In 1995, the Federal Court of Appeal upheld the exemption for Sikhs from wearing the "Mountie hat" as part of the RCMP dress requirements.

Marital practice

Prior to 1798, only ministers of the Church of England had the authority to solemnize legal marriages in Upper Canada. This power was extended by degrees to religious officials of various other Christian denominations over the first half of the 19th century, until an 1857 act granted the power to solemnize marriages to the ministers of every religious denominiation. A similar process occurred in Lower Canada, with the main difference being that it was the Roman Catholic Church which initially held the sole authority.[14]

Polygamous marriages, promoted by some religious minority groups, are illegal in Canada. Authorities often do not strictly enforce the applicable laws, as has been the case in Bountiful, British Columbia. On January 12, 2006, the Department of Justice (Canada) released a study, authored by three law professors at Queen's University, recommending that Canada repeal the laws that make polygamy a criminal offence.[15] See related article, Polygamy and religion.

In the 2003 case Halpern et al. v. Attorney General of Canada et al., the Ontario Court of Appeal rejected the argument that a failure of the law to recognize same-sex marriages violated the religious rights of the church that performed the ceremonies, though the court found the definition of marriage to be unconstitutional on other grounds.

Refusal of service

In 2000, Scott Brockie, a Toronto printer, was fined $5,000 by the Ontario Human Rights Commission for refusing to print letterhead, envelopes, and business cards for the Canadian Lesbian and Gay Archives.[16] Brockie unsuccessfully appealed to the Ontario appellate court to overturn the fine. The court ruled that the order requiring Brockie to print the materials was a justifiable violation of Brockie's religious rights, though it limited the scope of the Commission's ruling to only ordinary material such as letterhead and envelopes, saying the Commission "ought not to require Mr. Brockie to print material of a nature that could reasonably be considered to be in direct conflict with the core elements of his religious beliefs."[17]

In 2002, the Rainbow Harmony Project, a choir that supports LGBT persons, filed a complaint against Camp Arnes of Manitoba, after the camp denied them access. The complaint was settled, with both parties issuing a joint statement that the conflict had resulted from uncertainty regarding that nature of the camp's rental operations, and the acknowledgement that they were "part of its broader religious mission and outreach and not primarily a commercial activity."[18]

Court rulings in Saskatchewan have held that religious-based objections of provincial marriage commissioners to same-sex marriage do not need to be accommodated, because refusal by a government-appointed marriage commissioner to perform same-sex marriages would constitute a violation of the Charter equality rights of gay and lesbian individuals. In 2008, the Saskatchewan Human Rights Tribunal held that marriage commissioner Orville Nichols had discriminated against a same-sex couple by refusing to perform their marriage ceremony. The Tribunal ordered him to pay $2,500 in compensation to the couple. In 2009, the Saskatchewan Court of Queen's Bench upheld the Tribunal's decision.[19] In response to a reference question from the Government of Saskatchewan, the Saskatchewan Court of Appeal ruled in 2011 that two proposed bills which would have permitted marriage commissioners to refuse to perform same-sex marriages because of religious objections would be unconstitutional.[20] Ordained religious ministers in Canada are not required to marry same-sex couples. A poll conducted in October 2006 found that 57% of Canadians believe that a marriage commissioner should be able to refuse to officiate at a gay wedding so long as there are enough marriage commissioners available, and 72% felt that clergy should have the right to refuse to officiate if doing so would violate his or her religious beliefs.[21]

Refusal of medical treatment

A set of Jehovah's Witness parents refused blood transfusions for their one-year-old daughter after doctors decided the baby urgently needed them. The baby was made a ward of the state in order to administer blood transfusions. The Supreme Court of Canada ruled that this was a legitimate limitation on religious freedom.[22]

Other case law

In 2004, Robert Allen lost a case he brought against the Council for the Corporation of the County of Renfrew, where Allen attempted to prevent the council from opening each meeting with a prayer. The court found in favour of the council.[23]

In the 2004 case Syndicat Northcrest v. Amselem, the Supreme Court of Canada ruled in favour of Jews seeking to build a sukkah despite a condominium agreement that prohibited the action.[24]

Education

Canada's approach to religious education often faces concerns addressing to how to best balance competing concerns, e.g., anti-discrimination laws and religious freedoms, and respect rights to religious education outlined in important Canadian legal documents. In some provinces and territories, public funding for religious-based separate schools, either Roman Catholic or Protestant, is mandated by section 93 of the Constitution Act, 1867 and reaffirmed by Section Twenty-nine of the Canadian Charter of Rights and Freedoms. The United Nations Human Rights Commission declared in 1999 that Ontario was in violation of the international covenant on civil and political rights by only funding Catholic schools and not other faith-based schools.[25] In 2007, Ontario voters were polled as being opposed to extending funding to other faith groups.[26] Quebec was originally required by the Constitution to provide public funding for Roman Catholic and Protestant schools, but in 1997 Quebec obtained a constitutional amendment, with the consent of the National Assembly of Quebec, the House of Commons and Senate,[27] ending its requirement to fund religious-based schools for Protestants and Roman Catholics. Quebec then abolished publicly funded religious education through the Education Act, 1998 which took effect on July 1 of that same year. Newfoundland similarly abolished the constitutional requirement for funding for religious-based separate schools in 1998, by a constitutional amendment enacted by the Newfoundland and Labrador Legislative Assembly, the House of Commons and the Senate.[28] Prior to the amendment, Newfoundland and Labrador was required to fund separate schools run by a number of different religious groups.

In 2001, the Supreme Court of Canada ruled in Trinity Western University v. British Columbia College of Teachers that the British Columbia College of Teachers was wrong to withhold accreditation of Trinity Western University's teacher education program on the basis that the school's policy prohibited "homosexual behaviour".[29]

In a highly publicized 2002 case, Justice Robert McKinnon granted an interlocutory injunction ordering that Marc Hall be allowed to bring a same-sex date to prom at his Oshawa, Ontario Catholic high school.[30] The matter did not, however, proceed to trial, meaning no binding judgement on the merits of the case was issued.

In 2006, the Province of British Columbia moved to make changes that would require religious schools to teach LGBT-friendly educational material (see related article Peter and Murray Corren); however, the British Columbia government indicated that changes to the public education system were not intended to prevent religious schools from teaching their ethical codes of behaviour.[31] Also in 2006, in Quebec, Christian evangelical schools are now being required to teach both evolution and sex education, a requirement that does not exist in some other provinces.[32]

See also

References

Further reading

  • Ross, Malcolm (1991). A Paper on Religious Freedom ... contain[ing] the complete text of the address given on Sept. 6, 1991 at the Crystal Palace, Dieppe, N.B. ... sponsored by the Canadian Free Speech League. Moncton, N.B.: Stronghold Publishing Co. 18 p. Without ISBN

External links

  • Religious Freedom in Canada (Evangelical Fellowship of Canada)
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